Date: 20010705
Docket: IMM-705-00
Neutral citation: 2001 FCT 743
Between:
RUDY ABRAHAM ROSAS MEZA
Applicant
- and -
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
PINARD J:
[1] The applicant is a citizen of Peru. He arrived in Canada on August 31, 1992, and claimed refugee status on that date. He claims to have a well-founded fear of persecution in his country by reason of his membership in a particular social group.
[2] The first decision in the applicant's case was made by the Immigration and Refugee Board (the CRDD) on October 28, 1993, adjourning the hearing, [TRANSLATION] "to await documents that can prove the specific status of the claimant in the Peruvian National Police, to July 23, 1993". An application for review of that decision was dismissed by Mr. Justice Hugessen of this Court on October 28, 1994.
[3] On July 4, 1994, the applicant filed a motion to reopen with the CRDD which was allowed by Michel Shore, a coordinating member, on August 22, 1994. On December 3, 1997, the new panel assigned to hear the case declined jurisdiction and concluded that Mr. Shore had no authority or jurisdiction to reopen the hearing.
[4] That decision was challenged in this Court and was set aside, and the matter was referred back to a new panel of the CRDD.
[5] This application is for judicial review of the subsequent decision of the CRDD, which was made on January 12, 2000, after the new hearing of the applicant's claim; that decision held that the applicant had not discharged his burden of establishing that he has a well-founded fear of persecution by reason of his membership in a particular social group or any other ground in the Convention, and that he is excluded from the refugee definition by reason of paragraph Fa) of Article 1 of the Convention.
[6] The tribunal's decision is based on the applicant's complete lack of credibility. On this point, it is settled law that this Court should not substitute itself for the Refugee Division unless the applicant can show that the decision was based on an erroneous finding of fact made in a perverse or capricious manner or without regard for the material before it (subsection 18.1(4) of the Federal Court Act, R.S.C. 1985, c. F-7). Mr. Justice McDonald of the Federal Court of Appeal explained the law on this point in Siad v. Canada (Secretary of State), [1997] 1 F.C. 608, at paragraph 24:
... The Tribunal is uniquely situated to assess the credibility of a refugee claimant; credibility determinations, which lie within "the heartland of the discretion of triers of fact", [citation omitted] are entitled to considerable deference upon judicial review and cannot be overturned unless they are perverse, capricious or made without regard to the evidence. ...
[7] In this case, the CRDD listed a number of inconsistencies, contradictions and implausibilities in the applicant's account which, in my opinion, seriously damaged his credibility. Contradictions or discrepancies in the evidence of a refugee claimant are a well accepted basis for a finding of lack of credibility (see, for example, Dan-Ash v. Minister of Employment and Immigration (1988), 93 N.R. 33 (F.C.A.)). While the CRDD must have regard to the explanations offered and credibility can only be impugned if the explanations provided are unsatisfactory (see Hue v. Minister of Employment and Immigration (Marcy 8, 1988), A-196-87 (F.C.A.)), in this case the CRDD had regard to the explanations offered by the applicant but simply did not find them to be adequate.
[8] In Aguebor v. Minister of Employment and Immigration (1993), 160 N.R. 315 (F.C.A.), Mr. Justice Décary held as follows, at paragraph [4]:
There is no longer any doubt that the Refugee Division, which is a specialized tribunal, has complete jurisdiction to determine the plausibility of testimony: who is in a better position than the Refugee Division to gauge the credibility of an account and to draw the necessary inferences? As long as the inferences drawn by the tribunal are not so unreasonable as to warrant our intervention, its findings are not open to judicial review. In Giron, the Court merely observed that in the area of plausibility, the unreasonableness of a decision may be more palpable, and so more easily identifiable, since the account appears on the face of the record. In our opinion, Giron in no way reduces the burden that rests on an appellant, of showing that the inferences drawn by the Refugee Division could not reasonably have been drawn.
[9] In this case, it was entirely reasonable, in my view, for the CRDD to infer that it was completely implausible that the applicant would not have had knowledge of what the Peruvian National Police (the PNP) were doing. Contrary to the applicant's assertion, I am of the opinion that this determination is strongly supported by the evidence, the CRDD having found that "the claimant completely lacks credibility with regard to his responsibilities within the Peruvian National Guard".
[10] The CRDD is entitled to have regard to the applicant's behaviour at the hearing in assessing credibility (see, for example, Grinevich v. Minister of Citizenship and Immigration (April 11, 1997), IMM-1773-96). The CRDD determined, inter alia, that the "claimant's testimony concerning his duties during the winter months was extremely muddled and many details had to be requested". It cited the following example:
... when the claimant mentioned the reinforcements requested in order to mount guard when the other units did not have enough personnel, he continually tried to minimize his role, stating that, even if orders had come from his superiors, he would have obeyed those orders only two or three times during all his years of service, refusing to obey them in all other cases. He justified his refusals by saying that he was merely a technician and that he had not received weapons training. He had even been punished for refusing to respond to those orders; not only did the claimant not mention these punishments in his PIF, he was also unable to give approximate dates. Despite asking a number of questions, the panel was unable to understand whether guard was mounted at the US consulate, at the Ministry of the Economy or on a bridge.
[11] I therefore do not intend to interfere with the tribunal's assessment of the facts and of credibility. It is true that the tribunal, in my view, did not correctly report the applicant's testimony when it wrote in the decision:
... He testified at the July 1999 sitting that it was easy to join the police because citizens did not want to apply as a result of the massacres the police had committed. ...
[12] In fact, the text of the transcript is not so precise; it is somewhat ambiguous and must be considered in light of the clarification provided by the applicant himself at page 422 of the transcript, and the allegations set out in paragraphs 6.1 and 6.2 of the affidavit of Manuel Antonio Centurion. The applicant actually said that it was easy to join the police since [TRANSLATION] "young people did not want to apply because a lot of police officers were getting killed"(page 422 of the transcript). However, in view of the preponderance of the evidence in respect of (1) the applicant's membership in an organization which commits such offences as a continuous and regular part of its operation, (2) his personal and knowing participation and (3) his failure to disassociate from the organization at the earliest safe opportunity, and also in view of the numerous other inconsistencies, contradictions and implausibilities in the applicant's account that were identified in the decision, I do not consider the error to be decisive.
[13] In addition, the applicant alleged that certain notices were not properly given. On this point, the following regulatory and statutory provisions are relevant:
- Convention Refugee Determination Division Rules, SOR/93-45, entered into force on February 1, 1993 (the Rules):
| 5. An Assistant Deputy Chairperson or coordinating member may designate a member to act as presiding member in respect of a hearing into a claim or an application that, by the Act, must be brought before the Refugee Division.
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5. Un vice-président adjoint ou un membre coordonnateur peut désigner un membre pour agir à titre de président de l'audience relative à une revendication ou à une demande qui, conformément à la Loi, est entendue par la section du statut.
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| 9. (1) Where the Minister informs the Refugee Division pursuant to subparagraph 69.1(5)(a)(ii) of the Act that the Minister is of the opinion that matters involving section E or F of Article 1 of the Convention or subsection 2(2) of the Act are raised by the claim, the Minister shall specify the grounds and the parts of section E or F or of subsection 2(2) that in the opinion of the Minister are relevant to the claim and shall set out briefly the law and facts on which the Minister relies.
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9. (1) Lorsque le ministre, conformément au sous-alinéa 69.1(5)a)(ii) de la Loi, informe la section du statut qu'à son avis la revendication met en cause les sections E ou F de l'article premier de la Convention ou le paragraphe 2(2) de la Loi, il fait état des motifs et des éléments des sections E ou F ou du paragraphe 2(2) qui, selon lui, sont pertinents et expose brièvement le droit et les faits sur lesquels il s'appuie.
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| (2) Where, before the commencement of a hearing, the refugee hearing officer of the Refugee Division is of the opinion that a claim before the Refugee Division might involve section E or F of Article 1 of the Convention or subsection 2(2) of the Act, the refugee hearing officer shall forthwith notify the Minister and provide the Minister with such information as is necessary.
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(2) Lorsque, avant le début d'une audience, l'agent d'audience ou la section du statut est d'avis qu'une revendication dont elle est saisie pourrait mettre en cause les sections E ou F de l'article premier de la Convention ou le paragraphe 2(2) de la Loi, l'agent d'audience en informe sans délai le ministre et lui fournit les renseignements nécessaires.
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| (3) Where, during a hearing, the refugee hearing officer or a member is of the opinion that a claim before the Refugee Division might involve section E or F of Article 1 of the Convention or subsection 2(2) of the Act, the refugee hearing officer or the member shall so inform the presiding member and, if the presiding member so directs, the refugee hearing officer shall forthwith notify the Minister and provide the Minister with such information as is necessary.
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(3) Lorsque, au cours d'une audience, l'agent d'audience ou un membre est d'avis qu'une revendication dont est saisie la section du statut pourrait mettre en cause les sections E ou F de l'article premier de la Convention ou le paragraphe 2(2) de la Loi, il en informe le président de l'audience et, si ce dernier l'ordonne, l'agent d'audience en informe sans délai le ministre et lui fournit les renseignements nécessaires.
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| (4) The refugee hearing officer shall serve the person concerned forthwith with a copy of all written information that the refugee hearing officer provides to the Minister pursuant to subrules (2) and (3).
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(4) L'agent d'audience signifie sans délai à l'intéressé une copie de tous les renseignements écrits qu'il a fournis au ministre conformément aux paragraphes (2) et (3).
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- Immigration Act, R.S.C. 1985, c. I-2 (the Act):
| 69.1 (5) At the hearing into a person's claim to be a Convention refugee, the Refugee Division
(a) shall give
(i) the person a reasonable opportunity to present evidence, question witnesses and make representations, and
(ii) the Minister a reasonable opportunity to present evidence and, if the Minister notifies the Refugee Division that the Minister is of the opinion that matters involving section E or F of Article 1 of the Convention or subsection 2(2) of this Act are raised by the claim, to question the person making the claim and other witnesses and make representations; and
(b) may, if it considers it appropriate to do so, give the Minister a reasonable opportunity to question the person making the claim and any other witnesses and to make representations concerning the claim.
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69.1 (5) À l'audience, la section du statut :
a) est tenue de donner :
(i) à l'intéressé, la possibilité de produire des éléments de preuve, d'interroger des témoins et de présenter des observations,
(ii) au ministre, la possibilité de produire des éléments de preuve, d'interroger l'intéressé ou tout autre témoin et de présenter des observations, ces deux derniers droits n'étant toutefois accordés au ministre que s'il l'informe qu'à son avis, la revendication met en cause la section E ou F de l'article premier de la Convention ou le paragraphe 2(2) de la présente loi;
b) peut, dans tous les cas, si elle l'estime indiqué, autoriser le ministre à interroger l'intéressé ou tout autre témoin et à présenter des observations.
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[14] The applicant submits that the decision in issue is vitiated because (1) no copy of the written notice sent to the Minister by the CRDD under subsection 9(2) of the Rules was sent to either the applicant or his solicitor, as required by subsection 9(4), and (2) the Minister's notice of intervention should have been sent under subparagraph 69.1(5)(a)(ii) rather than paragraph 69.1(5)(b), to inform the applicant that clause 1Fa) of the Convention would be argued. The applicant further submits that under subsection 9(1) of the Rules, the Minister was required to briefly state the law and the facts on which he was relying in invoking clause 1Fa), which he failed to do. Having regard to the evidence in the record, I do not find these arguments persuasive.
[15] On March 14, 1995, Roxanne Cyr, a refugee claim officer (RCO), informed the Minister in writing that the applicant's claim might involve section F of Article 1 of the Convention, pursuant to subsection 9(2) of the Rules. It seems to me that neither the applicant nor his counsel received a copy of that letter and the Personal Information Form that accompanied it, despite the requirement set out in subsection 9(4) of the Rules.
[16] In my view, the purpose of subsection 9(4) is to give the applicant and his counsel notice that the claim might involve section E or F of Article 1 of the Convention, to give them an opportunity to examine the information based on which those sections might be involved.
[17] The real issue is therefore whether, during the hearing, the appellant and his counsel had been informed of the fact that paragraph 1F was at issue and were able to act accordingly (Arica v. Minister of Employment and Immigration (1995), 182 N.R. 392 (F.C.A.)). The evidentiary record before me establishes that they did have that understanding of the case and proceeded on the basis of the statement that the exclusion clause was at issue.
[18] The proceedings in this case were lengthy and complex. The parties have taken part in a number of hearings before the CRDD on questions of evidence and jurisdiction, starting on June 17, 1993. It appears from the record that on March 22, 1995, scarcely a week after the RCO's letter was written, a copy of a letter written to the RCO by the Minister was sent to the applicant, confirming the Minister's intention to intervene in the case in accordance with paragraph 69.1(5)(b) of the Act. However, that letter did not state the reason for the intervention.
[19] However, at the hearing on August 22, 1995, the possibility of the exclusion clause being invoked was expressly mentioned by the Minister, and it is clear that from the moment the applicant and his counsel were alerted to this:
[TRANSLATION]
RCO So you informed them of your intention on March 22, 1995 ... to intervene in this second claim.
Minister To intervene in this second claim. And also, given that possibly the clause, the claim by Mr. Roza Someza (sic) could raise an exclusion question, involving Section F(1) of Article 1 of the Convention.
...
RCO ... did you [the applicant and his counsel] receive a notice saying that he [the Minister] intended to raise an exclusion clause.
Minister ... we received a letter from the hearing officer, Ms. Cyr, dated March 14, 1995, informing us that possibly from reading the Personal Information Form, that possibly an exclusion clause might be raised and that is why on March 22, 95, we sent the notice to all the parties.
...
The intervention under section 69.1(5)(b), which is ... in order for the Minister to be able to participate in the hearing and ask the claimant questions and make argument, was done in order to clarify certain points that might lead to the possible ex... the question of raising the exclusion clause. The problem in this case and the reason why the Minister did not go directly with an intervention under 69.1(5)(a)(ii) of the Act for the exclusion clause is that we had very few details regarding the claimant's claim itself, ...
[20] Arica, supra, establishes that it is not necessary, in terms of notice, that the applicant be informed of the particular paragraph of clause 1F that is at issue, particularly where the parties involved have never expressed any concern in that regard. Nonetheless, at the hearing on January 15, 1996, it became clear to the parties that section a) of clause 1F was at issue:
Minister If after hearing the new facts and the new testimony of Mr. Rosas Meza, you now decide that he's credible and that he was a policeman, then the Minister could decide to ... to intervene under Section 69.1(5)(a)(ii) on the basis that if he was a policeman and member of the Guarda Civil in Peru, then in the opinion of the Minister, possibly that ... because of the crimes against humanity and because he's a member of force that has been widely spread out in documentation as a group that has committed crimes against humanity. ...
[21] It appears plain to me that from the beginning of the hearing de novo on July 12, 1999, the applicant and his counsel were fully aware of the issue to be determined, which was that there were serious reasons for considering that the applicant had committed crimes against humanity. Unlike the situation in Malouf v. Canada (M.C.I.), [1995] 1 F.C. 537, the applicant in this case was not denied the opportunity to present evidence or make representations. In fact, he had more than three and a half years to prepare on that issue.
[22] It appears from the record that the applicant was aware of the existence of the letter and that he had several opportunities to ask that it be produced in a timely manner, which he did not do. I have considerable difficulty in understanding why the applicant waited more than six years to raise a breach of subsection 9(4) of the Rules. In the circumstances, it may easily be assumed that this kind of procedural defect caused him no real prejudice, and consequently that this defect alone cannot vitiate the decision.
[23] Lastly, contrary to the applicant's assertion, the Minister did state the law and facts on which he was relying in invoking clause 1Fa) at the hearing on January 15, 1996, when he stated that he was intervening because the applicant was a police officer and a member of the Guarda Civil in Peru, a group that is recognized as having committed crimes against humanity.
[24] Moreover, with respect to the applicant's written arguments that were not made orally in this Court, I see no argument that demonstrates any error that could warrant the judicial review sought. In closing, I note that at the hearing in this Court, the applicant, through his counsel, formally abandoned his arguments relating to the jurisdiction and impartiality of the coordinating member.
[25] For all these reasons, the application for judicial review is dismissed.
YVON PINARD
JUDGE
OTTAWA, ONTARIO
July 5, 2001
Certified true translation
Suzanne M. Gauthier, LL.L. Trad. a.
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT FILE NO.: IMM-705-00
STYLE OF CAUSE: RUDY ABRAHAM ROSAS MEZA v. MCI
PLACE OF HEARING: MONTREAL, QUEBEC
DATE OF HEARING: MAY 29, 2001
REASONS FOR ORDER OF THE HONOURABLE MR. JUSTICE PINARD
DATED: JULY 5, 2001
APPEARANCES:
MICHEL LE BRUN FOR THE APPLICANT
MARIE-NICOLE MOREAU FOR THE RESPONDENT
SOLICITORS OF RECORD:
MICHEL LE BRUN
MONTREAL, QUEBEC FOR THE APPLICANT
Morris Rosenberg
Deputy Attorney General of Canada
Montréal, Quebec FOR THE RESPONDENT
Date: 20010705
Docket: IMM-705-00
Ottawa, Ontario, July 5, 2001
Present: The Honourable Mr. Justice Pinard
Between:
RUDY ABRAHAM ROSAS MEZA
Applicant
- and -
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
ORDER
The application for judicial review of the decision of the Convention Refugee Determination Division dated January 12, 2000, holding that the applicant had not discharged his burden of establishing that he has a well-founded fear of persecution by reason of his membership in a particular social group or on any other ground in the Convention and that he is excluded from the refugee definition by reason of paragraph Fa) of Article 1 of the Convention, is dismissed.
YVON PINARD
JUDGE
Certified true translation
Suzanne M. Gauthier, LL.L. Trad. a.
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